FILED
COURT OF /kPPEALz
DIVISION11 "
2015AP. 34 AM 9: 51
IN THE COURT OF APPEALS OF THE STATE OF
WASHINGTO
DIVISION II
STATE OF WASHINGTON, No. 45392 -4 -II
Respondent, Consolidated with
Nos. 45399 -1 - II; 45402 -5 - II
v.
JAMES JOHN CHAMBERS, UNPUBLISHED OPINION
Appellant.
WoRSwicx, J. — James John Chambers moved under CrR 7. 8 to withdraw his 1999
guilty pleas to several charges that were included in an indivisible plea agreement under three
different cause numbers, which motion the trial court denied. Chambers appeals, asserting that
because his pleas are facially invalid, the trial court erred by denying his motion. In a statement
of additional grounds for review ( SAG), Chambers argues that the trial court failed to comply
with remand instructions when denying his CrR 7. 8 motion to withdraw his guilty pleas. We
affirm.
FACTS
In 1999, Chambers entered into an indivisible plea agreement under three different Pierce
County Superior Court cause numbers. State v. Chambers, 176 Wn.2d 573, 577 -78, 583, 293
P. 3d 1185 ( 2013). In cause number 99 -1- 00817 -2, Chambers pleaded guilty to unlawful
possession of a controlled substance with intent to deliver, unlawful manufacturing of a
controlled substance, and two counts of first degree unlawful possession of a firearm ( February
No. 45392 -4 -II
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crimes). 1 Chambers, 176 Wn.2d at 577 -78. In cause number 99 -1- 02235 -3, Chambers pleaded
guilty to unlawful possession of a controlled substance ( May crime). Chambers, 176 Wn.2d at
578. Finally, in cause number 99 -1- 05307 -1, Chambers pleaded guilty to failure to remain at an
injury accident, unlawful possession of a firearm, unlawful manufacture of a controlled
substance, and two counts of first degree possession of stolen property (November crimes).
Chambers, 176 Wn.2d at 578 -79.
In 2008, Chambers filed a personal restraint petition with this court that challenged the
validity of his sentence with respect to his February crimes. Chambers, 176 Wn.2d at 579; In re
Pers. Restraint of Chambers, No. 38074 -9 -1I, ( Wash. Ct. App. Jan. 15, 2009). We granted
Chambers' s 2008 petition in part, holding that his judgment and sentence was invalid on its face
as to his convictions for two counts of first degree unlawful possession of a firearm. Order
Granting Petition in Part, In re Chambers, No. 38074 -9 -II. Our Supreme Court accepted
discretionary review from our order granting Chambers' s petition in part and ordered the trial
court to consider withdrawing Chambers' s guilty pleas as to all his February crimes. In re Pers.
Restraint of Chambers, 171 Wn.2d 1035 ( 2009).
On remand, the trial court granted Chambers' s motion to withdraw his guilty pleas to all
his February crimes. See State v. Chambers, 163 Wn. App. 54, 60, 256 P. 3d 1283 ( 2011), aff'd,
176 Wn.2d 573 ( 2013). Additionally, " [b] ecause the State had destroyed the evidence to support
1 For clarity, and for consistency with prior decisions addressing Chambers' s plea agreement,
this opinion will hereafter refer to Chambers' s convictions under cause number 99 -1- 00817 -2 as
February crimes "; conviction under cause number 99 -1- 02235 -3 as " May crime "; and
convictions under cause number 99 -1- 05307 -1 as " November crimes."
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the February crimes, the trial court dismissed the case on the State' s motion." Chambers, 163
Wn. App. at 60. The State appealed the trial court' s order granting Chambers' s motion to
withdraw his guilty pleas to his February crimes, arguing that Chambers' s guilty pleas to those
crimes were part of an indivisible agreement to plead guilty to his May and November crimes.
Chambers, 163 Wn. App. at 60 -61. We agreed with the State, reversed the trial court' s order
granting Chambers' s motion to withdraw his guilty pleas to the February crimes, and remanded
for further proceedings, in which Chambers may seek to withdraw his indivisible guilty plea on
all nine counts." Chambers, 163 Wn. App. at 62. Our Supreme Court accepted review and
affirmed our holding that the trial court had erred by granting Chambers' s motion to withdraw
his guilty pleas as to his February crimes, agreeing that those pleas were part of an indivisible
plea agreement. Chambers, 176 Wn.2d at 580 -83.
After our Supreme Court issued its opinion, Chambers moved under CrR 7. 8 to withdraw
his guilty pleas as to all of the charges contained in his indivisible plea agreement. The trial
court denied Chambers' s motion, concluding that Chambers' s had failed to demonstrate a
manifest injustice allowing him to withdraw his guilty pleas. Chambers appeals the trial court' s
order denying his motion to withdraw his guilty pleas.
ANALYSIS
Chambers contends that the trial court erred by denying his CrR 7. 8 motion to withdraw
his guilty pleas to his February, May, and November crimes due to the facial invalidity of his
judgment and sentence with respect to his February crimes of first degree unlawful possession of
a firearm. We disagree and affirm the trial court' s order denying Chambers' s motion to
withdraw his guilty pleas.
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We review a trial court' s decision to grant or deny a motion to withdraw a guilty plea for
an abuse of discretion. State v. Forest, 125 Wn. App. 702, 706, 105 P. 3d 1045 ( 2005). A trial
court abuses its discretion when it bases its decision on untenable grounds or reasons. State v.
Powell, 126 Wn.2d 244, 258, 893 P. 2d 615 ( 1995). A defendant is permitted to withdraw a
guilty plea under CrR 4. 2( f) "whenever it appears that the withdrawal is necessary to correct a
manifest injustice." CrR 7. 8 governs postjudgment motions to withdraw a guilty plea and
provides in relevant part:
b) Mistakes; Inadvertence; Excusable Neglect;
Newly Discovered
Evidence; Fraud; On motion and upon such terms as are just, the court may
etc.
relieve a party from a final judgment, order, or proceeding for the following
reasons:
4) The judgment is void; or
5) Any other reason justifying relief from the operation of the judgment.
A defendant seeking to withdraw his or her guilty plea in a postjudgment must meet the
requirements for a plea withdrawal under both CrR 4.2( f) and CrR 7. 8. State v. Lamb, 175
Wn.2d 121, 128, 285 P. 3d 27 ( 2012). In other words, to succeed on a postjudgment motion to
withdraw a guilty plea, the defendant must demonstrate both ( 1) that withdrawal of the plea is
necessary to correct a manifest injustice, and (2) that relief from the final judgment is justified by
one of the reasons enumerated in CrR 7. 8( b).
I. MANIFEST INJUSTICE
A manifest injustice allowing a defendant to withdraw a guilty plea is " an injustice that is
obvious, directly observable, overt, [ and] not obscure." State v. Taylor, 83 Wn.2d 594, 596, 521
P. 2d 699 ( 1974) ( citing WEBSTER' S THIRD NEW INTERNATIONAL DICTIONARY ( 1966)). A
defendant carries a heavy burden in demonstrating a manifest injustice permitting the withdrawal
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of a guilty plea, which "burden is justified by the greater safeguards protecting a defendant at the
time [ the defendant] enters [ his or] her guilty plea." State v. Wilson, 162 Wn. App. 409, 414,
253 P. 3d 1143 ( 2011). One of the ways in which a defendant may meet the burden of
demonstrating a manifest injustice is by showing that the plea was not voluntary. State v.
Wakefield, 130 Wn.2d 464, 472, 925 P. 2d 183 ( 1996). A guilty plea is not voluntary if the
defendant was misinformed about the direct sentencing consequences of pleading guilty. State v.
A. N.J., 168 Wn.2d 91, 113 - 14, 225 P. 3d 956 ( 2010).
Chambers asserts that he met the requirement of showing a manifest injustice because ( 1)
his guilty plea convictions for first degree unlawful possession of a firearm required him to serve
nearly double the amount of time in custody than he would have received had he been properly
charged and sentenced," and ( 2) he was misinformed about the direct sentencing consequences
of his guilty pleas. Br. of Appellant at 10. On both points we disagree.
First, the record belies Chambers' s assertion that his first degree unlawful possession of
a firearm convictions required him to serve more time in confinement than if he had been
charged and sentenced for second degree unlawful possession of a firearm. Although
properly
Chambers is correct that the trial court sentenced him to 116 months for each of his first degree
unlawful possession of a firearm convictions and that the statutory maximum sentence for
second degree unlawful possession of a firearm was 60 months, Chambers was ordered to serve
his 116 month sentences for first degree unlawful possession of a firearm concurrent with each
other and concurrent with his 149 month sentence for unlawful possession of a controlled
substance with intent to deliver conviction and his 144 month sentence for unlawful
manufacturing of a controlled substance. Former RCW 9. 41. 040( 2)( b) ( 1997); former RCW
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9A. 20. 021( 1)( c) ( 1982). Accordingly, in light of Chambers' s concurrent sentences for his
February crimes, the trial court' s imposition of 116 month sentences for each of Chambers' s first
degree unlawful possession of a firearm convictions did not require him to serve any more time
in confinement than if the trial court had sentenced him to the statutory maximum of 60 months
for second degree unlawful possession of a firearm.2
Second, we disagree with Chambers' s assertion that he was misinformed about the direct
sentencing consequences of his guilty pleas. Chambers' s statement on plea of guilty clearly
shows that he was aware that the statutory maximum penalty for first degree unlawful possession
of a firearm, the crimes to which he had pleaded guilty, was ten years of confinement. Former
RCW 9. 41. 040( 2)( a); former RCW 9A.20. 021( 1)( b). Properly construed, Chambers' s challenge
to the voluntariness of his guilty pleas to first degree unlawful possession of a firearm was not
that he had been misadvised about the sentencing consequences of those crimes but, rather, that
those charges lacked a factual basis with which to support his guilty pleas. But Chambers did
not move to withdraw his guilty plea on this ground, and he does not argue it on appeal. Because
Chambers' s guilty plea convictions for first degree unlawful possession of a firearm did not
require him to serve any more time than if he had been convicted of second degree unlawful
possession of a firearm, and because he was properly informed of the direct sentencing
consequences of pleading guilty to first degree unlawful possession of a firearm, the trial court
2 Chambers does not contend, and the record does not appear to support, that his offender score
would have differed had he been charged and sentenced for second degree unlawful possession
of a firearm. Former RCW 9. 94A.360 ( 1998).
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did not abuse its discretion by concluding that he failed to show a manifest injustice warranting
the withdrawal of his guilty pleas.
II. UNJUST REMEDY
Even assuming that Chambers had met his burden of demonstrating a manifest injustice
with regard to his first degree unlawful possession of a firearm convictions and sentences, the
trial court nonetheless did not abuse its discretion by denying his motion to withdraw his guilty
pleas to all the charges in his indivisible plea agreement because withdrawal of Chamber' s guilty
pleas under these circumstances would be unjust to the State.
When a defendant demonstrates a manifest injustice with respect to some of the charges
included in an indivisible plea agreement, the defendant has the initial choice of remedy between
withdrawal of the entire plea agreement and specific performance. State v. Turley, 149 Wn.2d
395, 400 -401, 69 P. 3d 338 ( 2003); but see State v. Barber, 170 Wn.2d 854, 873 -74, 248 P. 3d 494
2011) ( excluding remedy of specific performance where the parties agreed to an illegal sentence
based upon a mutual mistake). However, a trial court is not bound by the defendant' s choice of
remedy. Turley, 149 Wn.2d at 401. Rather, "[ o] nce the defendant has opted for one of the
available remedies, the State ` bears the burden of demonstrating that the defendant' s choice of
remedy is unjust. ' Turley, 149 Wn.2d at 401 ( quoting State v. Miller, 110 Wn.2d 528, 536, 756
P. 2d 122 ( 1988), overruled on other grounds by Barber, 170 Wn. 2d 854). This burden requires
the State to show that " compelling reasons exist not to allow the defendant' s choice" of remedy.
Turley, 149 Wn.2d at 401. And the State may base this showing on any or all of the charges
included in the indivisible plea agreement. Turley, 149 Wn.2d at 401. " The trial court then
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determines whether those reasons are compelling and [ whether] the defendant' s choice of
withdrawal or specific performance is unjust." Turley, 149 Wn.2d at 401.
Here, the State presented compelling reasons why withdrawal of Chambers' s guilty pleas
would be unjust. First, the State asserted that withdrawal of the indivisible plea agreement
would be unjust because the evidence that could be used to prosecute Chambers for his February
crimes had been destroyed. Under Miller, this reason alone was sufficient for the trial court to
deny Chambers' s motion to withdraw his guilty pleas. 110 Wn.2d at 535 ( " plea withdrawal may
be unfair if the prosecutor has detrimentally relied on the bargain and has lost essential witnesses
or evidence ") ( citing United States v. Jerry, 487 F. 2d 600 ( 3d Cir. 1973); Farnsworth v. Sanford,
115 F.2d 375 ( 5th Cir. 1940)). Additionally, the State asserted that withdrawal of Chambers' s
guilty pleas would be unjust because the State had relied on the agreement in deciding not to
prosecute him for murder in regard to his November crimes and it would be difficult to now
prosecute him for an alleged murder that took place in 1999. This is also a compelling reason to
deny Chambers' s motion to withdraw his guilty pleas. Because the State presented compelling
reasons why withdrawal of Chambers' s guilty pleas would be unjust, the trial court did not abuse
its discretion by denying Chambers' s motion to withdraw his guilty pleas.
III. SAG
In his SAG, Chambers argues that the trial court erred by denying his motion to withdraw
his guilty pleas because our prior decision in Chambers, 163 Wn. App. 54, and our Supreme
Court' s affirmance of that decision in Chambers, 176 Wn.2d 573, required the trial court to grant
his withdrawal motion. But Chambers misreads our holding in that case. We did not direct the
trial court to grant his motion to withdraw his pleas as he asserts in his SAG. Rather, we
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reversed the trial court' s order granting Chambers' s motion to withdraw his guilty pleas to his
February crimes and remanded for further proceedings, stating that on remand " Chambers may
seek to withdraw his indivisible guilty plea" agreement with respect to all of his charges.
Chambers, 163 Wn. App. at 62 ( emphasis added). Similarly, in affirming our decision, our
Supreme Court did not direct the trial court to grant Chamber' s withdrawal motion.
Accordingly, this argument lacks merit. We affirm the trial court' s order denying Chambers' s
motion to withdraw his guilty pleas.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
7 femoreixid,
Worswick, J.
hanson, C.J. -
Melnick, J.
9